Laura Ferguson ·
84 Geo. Wash. L. Rev. 1315 ·
Administrative agencies today adjudicate vastly more disputes than do Article III courts. The constitutional underpinnings of the administrative agency’s adjudicative power remain somewhat murky, however, as does today’s conception of which cases administrative agencies can appropriately adjudicate. The Supreme Court has said that Article III courts alone retain the constitutional power to adjudicate private rights disputes, but that administrative agencies can be congressionally delegated the power to adjudicate public rights disputes. However, issues arise because the distinction between public and private rights—and the definitions of these terms—is not clearly drawn. Indeed, the Supreme Court has repeatedly faced the question of whether administrative agency adjudication of certain so-called public rights is appropriate, given the litigations’ resulting impact on private rights. During the October 2014 Term, Justice Thomas laid the groundwork for an originalist approach to public rights, wherein public rights disputes are limited to historically understood categories. Under this method, if a public right was not recognized either at common law or as an exception to Article III litigation in the early days of the Republic, it could not be adjudicated by an administrative agency. Although this would restrict the number of cases that administrative agencies could review, it would better protect the constitutional function of Article III courts and the private rights of individuals. This Essay discusses Justice Thomas’s model and suggests possible categories for future research, concluding that reformulating the public rights doctrine in this manner would also provide coherence, clarity, and boundaries for the ever-growing administrative state.
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